Tenancies for minors

This content applies to England

The legal position of minors (children and young people under the age of 18) with regard to holding a tenancy, and the issues associated with this.

Minors have a limited capacity to enter into a legally binding contract, unless the contract is for 'necessaries' (ie things that are required for daily subsistence). Accommodation is generally assumed to be a 'necessary'.

Background issues

Many contracts made between an adult and a minor are binding on the adult but not on the minor. However, this does not apply to contracts for 'necessaries' if the minor has sufficient capacity to understand the responsibilities arising from it (this will be a question of fact in each case).[1]

Accommodation is generally assumed to be a 'necessary', therefore a contract relating to the provision of accommodation to a young person under the age of 18, but with sufficient capacity, will be binding on her/him (ie valid and fully enforceable against her/him). For example, s/he will be liable to pay rent and, if rent arrears accrue, the landlord will be able to recover the unpaid rent through the courts (but see 'Court action against minors' below).

However, under land law, a minor cannot hold a 'legal' interest in land and can only hold an 'equitable' interest.[2] This creates difficulties for landlords when granting and ending occupation rights to minors as, depending on the type of letting, there might not be a direct contractual relationship between the landlord and the minor.

Ways in which landlords can let to minors

A landlord can grant occupation rights to minors in one of the following ways:

Grant of tenancy to a third party on trust for the minor

Although a minor cannot hold a tenancy s/he can 'benefit' from a tenancy. The tenancy can be granted to a third party, a 'trustee', and held on trust for the minor until s/he reaches the age of 18.

The minor has a beneficial interest, which means s/he has the right to live in the property. The trustee will hold the legal title to the tenancy.

The trustee could be an adult relative or friend or a social worker and is in effect a caretaker of the tenancy. The trustee is responsible for ensuring the rent is paid, but is not liable to pay the rent out of her/his own resources unless s/he gives a personal guarantee to do so.

Landlord holds the tenancy on trust for the minor

The landlord can retain the tenancy on trust (as above) for the minor until s/he reaches 18.[3] This usually happens when the landlord enters into a tenancy agreement with the minor, without realising that the minor cannot hold a legal interest in property.

However, this will cause problems in the event of the landlord wishing to seek possession, because the landlord cannot serve notice on her/himself.[4]

Grant of a joint tenancy

If there is a person aged 18 or over who is willing to enter into a tenancy agreement with the minor, a joint tenancy can be created. The adult tenant will hold the legal estate as trustee for both joint tenants (as above). An agreement between all parties (ie including the landlord) could be drawn up to say that a sole tenancy will be granted to the minor when s/he reaches 18 years old, at which time the joint tenancy will be surrendered.

Grant of a licence

There is no restriction on minors being granted a licence (ie personal permission to occupy premises). A full tenancy can then be granted to the minor when s/he turns 18. The distinction between a tenancy and a licence is explained in What is a tenancy?.

Where the landlord is a local authority, and all the hallmarks of a secure tenancy exist, the landlord can grant a secure licence. A secure licence has the same security as a secure tenancy. For more information see the section on Secure tenancies.

Housing benefit and 16- or 17-year-olds

There are no age restrictions on claiming housing benefit. If a young person is living independently and responsible for paying the rent, s/he will be eligible, subject to restrictions applying to persons of any age, for housing benefit. Many 16- or 17-year-olds will fall within the Single Room Rent restrictions imposed on those aged under 35 (see the page on Paying for accommodation for further information on housing benefit and the shared accommodation rate).

Court action against minors

Court actions against minors must be brought through an adult willing to act as a 'litigation friend'. This is often a social worker or a close relative. If there is a trustee, s/he will normally be the minor's litigation friend. If there is nobody available to act then the court can appoint the District Judge as a litigation friend to protect the interests of the minor.[5]

Succession and assignment

A minor can succeed to a tenancy if s/he fulfils the relevant statutory criteria for succession to a deceased's tenancy.[6] The tenancy can be held on trust until s/he reaches 18 years old.

Rights to assign a tenancy depend upon the type of tenancy. When the tenancy permits assignment and an adult tenant attempts to assign a tenancy to a minor, the assignment will not transfer the legal title but will automatically create a trust. The adult tenant will be the trustee, unless someone else is named as the trustee. For more information see the sections on Succession and Assignment.

Wales

The information on this page applies only to England. Go to Shelter Cymru for information relating to Wales.